SUBMISSIONS OF THE ABORIGINAL AND TORRES STRAIT ISLANDER SOCIAL JUSTICE COMMISSIONERON COMMON DIFFICULTIES FACING ABORIGINAL WITNESSES

Outline of submissions

At the directions hearing in this matter on 20 February 2007, Collier J observed that many of the witnesses in this matter are elderly and/or Aboriginal and the parties may wish to give consideration to any issues that might affect how such witnesses might best give their evidence.

These submissions are filed on behalf of the Aboriginal and Torres Strait Islander Social Justice Commissioner (‘the Commissioner’) to assist the court as amicus curiae, by:

highlighting and explaining some common difficulties and cultural tendencies experienced by Aboriginal witnesses (Part A); and

PART A: COMMON DIFFICULTIES AND CULTURAL TENDENCIES OF ABORIGINAL WITNESSES

Introduction

The communication difficulties that may be faced by Aboriginal people in the legal system have long been recognised.1 In the Queensland context, these have been well documented by Dr Diana Eades 2 and the Criminal Justice Commission (CJC).3 These issues are also dealt with in detail in the Equal Treatment Benchbook of the Supreme Court of Queensland (‘the Queensland Benchbook’)4 and in Aboriginal English in the Courts: A Handbook, (‘The Queensland Handbook’) prepared by the Queensland Department of Justice and Attorney-General to assist judges and other members of the legal profession.

It can be accepted that there are a range of distinct characteristics of ‘Aboriginal English’5 and common features of the manner in which many Aboriginal people communicate which may lead to miscommunication if not recognised.6

Verbal communication

Distinctions between Aboriginal English and Standard English

Proficiency in Standard English amongst Aboriginal people varies widely. The Queensland Benchbook notes that most Aboriginal people speak English when speaking with non-Aboriginal people, adding ‘However, it cannot be assumed that an Aboriginal person is speaking standard Australian English.’7 The Benchbook further notes that differences between Standard and Aboriginal English ‘are to be found in every area of language: sounds or accent, grammar, vocabulary, meaning, use and style.’8

Dr Eades found:

There can be no doubt that some speakers of Aboriginal English can communicate very successfully with non-Aboriginal speakers of English. These Aboriginal people are bi-culturally competent; that is, they can communicate in an Aboriginal way in Aboriginal interactions and in a non-Aboriginal way in non-Aboriginal interactions. However, the number of Aboriginal English speakers who are truly bi-culturally competent is very small.9(emphasis added)

Similarly, in its report on Aboriginal customary law, the Australian Law Reform Commission (‘ALRC’) found:

Difficulties of communication and comprehension are very real for many Aborigines ... Many Aborigines speak non-standard English so that the way in which questions are asked, especially direct questions, may often lead to misunderstanding and incorrect answers bring given.10

Consequences of the differences between Standard and Aboriginal English for Aboriginal witnesses

As indicated by the ALRC above, a significant consequence of the differences between Standard and Aboriginal English is that many Aboriginal witnesses have difficulty in fully understanding questions put to them in court and in expressing themselves clearly in language that the court can understand.11 Unfamiliar legal concepts can cause particular difficulties.

Furthermore, whilst Standard and Aboriginal English are in many ways similar, the similarities can, at times, exacerbate communication difficulties. Harkins has termed this the ‘pseudo-intelligibility trap’,12 whereby speakers of Standard English assume that they understand Aboriginal English, and vice versa, without perceiving subtle, but at times crucial, differences in meaning.

Differences between Standard and Aboriginal English can particularly create communication problems when the following types of questions are used:

Questions that include the use of ‘double negatives’,16 figurative speech17 or abstract concepts or references.18

Cultural issues affecting communication

In addition to linguistic differences between Standard and Aboriginal English, various cultural differences can cause or exacerbate communication difficulties.

Direct questioning

Direct questioning is generally considered rude in Aboriginal culture.19 As a result, Aboriginal witnesses may feel intimidated, embarrassed or uncomfortable when confronted with direct questioning. This discomfort has a propensity to be misinterpreted in a courtroom setting as a sign of guilt, evasiveness or untruthfulness.

Furthermore, Aboriginal witnesses may answer direct questions with responses such as ‘I don’t know’ or ‘I don’t remember’. These responses may accurately reflect the witness’ intent. Conversely, however, these responses may be used by the witness to express his or her disapproval at the perceived inappropriateness of the style of questioning.20

Gratuitous concurrence

A widely recognised cultural tendency in the case of Aboriginal witnesses is ‘gratuitous concurrence’, whereby an Aboriginal will agree with questions put to him or her in order to placate the interrogator.21 Gratuitous concurrence is illustrated by Eades as follows:

Aboriginal English speakers often agree to a question even if they do not understand it. That is, when Aboriginal people say “yes” in answer to a question it often does not mean “I agree with what you are asking me”. Instead, it often means “I think that if I say “yes” you will see that I am obliging, and socially amenable and you will think well of me, and things will work out between us”.22

In R v Anunga, Foster J explained it this way:

...most Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman.23

Specific information

When asked quantifiably specific questions, such as about times, dates or quantities, Aboriginal people often provide responses that are non-specific, qualitative or relative to something else (ie ‘before breakfast’).24 Eades provides the following example:

So for example the specific question: “How many drinks did you have?”, would be answered either vague, as in “Oh, must have been quite a few” or through being specific in relation to another situation, such as: “Must be more than Freddie.”25

Alternatively, an Aboriginal witness may appreciate that a specific response is required and seek to provide one. However, due to cultural and linguistic differences, an Aboriginal witness may be less accustomed to providing specific responses. This can lead to the witness providing a response that is specific, but not accurate.26 In addition, the same witness may not be consistent in later responses regarding that same specific information. This inconsistency may be the result of confusion, unfamiliarity with giving specific responses or even an attempt to appease the questioner by seeking to provide the answer the questioner seeks.27 Eades cautions against such inconsistent answering being interpreted as the witness being unreliable:

Such differences in answers to the question seeking specific information should not be interpreted as indicative of an unreliable witness. Rather, these disparities indicate a dialectal difference between Aboriginal English and Standard English, as well as a common unfamiliarity with and lack of competence in handling precise quantification amongst Aboriginal people.28

Naming of deceased persons

It is generally considered inappropriate in Aboriginal society to speak the name of a deceased person. Graeme Neate, President of the National Native Title Tribunal, described this custom as follows:

It is the general practice of many Aboriginal communities not to speak the name of a deceased person or at least a recently deceased person. To speak the name or publish it in some other form can be perceived at least as being discourteous and may lead to a sense of concern, offence, shame or embarrassment.29

Non-verbal communication

Avoidance of eye contact

Aboriginal witnesses will often avoid direct eye contact during questioning.30 In non-Aboriginal Australian culture, this may be misinterpreted as dishonesty, evasiveness or rudeness. However, as the Queensland Benchbook remarks:

In Aboriginal culture, avoidance of direct eye contact is intended to demonstrate politeness and respect particularly in relation to persons of authority. Direct eye contact with anyone other than the person’s intimate peers and relations may be considered rude, disrespectful or even aggressive.31

Silence

Extended periods of silence is a common norm of Aboriginal communication, although can again be interpreted by non-Aboriginals, particularly in a court setting, as dishonesty, evasiveness or rudeness.32 Alter explains:

[E]xtended periods of silence are an expected norm of Aboriginal communication, indicating that the responder is taking a moment to reflect before answering. Silence is therefore interpreted as a sign that subsequent responses are more considered and accurate. ... Silence is particularly salient during cross-examination, when barristers tend to verbally intimidate witnesses by raising their voices.33

The Queensland Benchbook adds that silence may alternatively indicate that an Aboriginal witness:34

wants time to think or adjust to a situation;

feels that he or she lacks authority to speak on a particular topic or in the presence of a particular person;

feels that he or she has already answered the question;

is uncomfortable with the discussion;

does not support the proposition being put; or

does not understand what is being asked and is too embarrassed to seek clarification.

Gestures

Hand gestures and movements of the eyes or head are an essential and integrated part of Aboriginal English. At times these gestures may be subtle or quick, meaning that the gestures ‘could well pass unnoticed in the courtroom situation, with the result that the full meaning of a witness’ response was not conveyed.’35

PART B: POSSIBLE MEASURES TO IMPROVE COMMUNICATION WITH ABORIGINAL WITNESSES

Power of the Court to control proceedings

The Court has wide powers to make directions for the proper conduct of proceedings.36 In addition, pursuant to s 26 of the Evidence Act 1995 (Cth), the Court has power to make such orders as it considers just in relation to:

(a) the way in which witnesses are to be questioned; and

(b) the production and use of documents and things in connection with the questioning of witnesses; and

(c) the order in which parties may question a witness; and

(d) the presence and behaviour of any person in connection with the questioning of witnesses.

The Commissioner submits that there are a number of measures that can be taken by the Court, pursuant to the above powers, to reduce the problems that might confront Aboriginal witnesses in the present case. These are listed below.

The appropriateness of the measures suggested may vary from witness to witness according to the ‘bicultural literacy’ of the particular witness. The Court may be assisted by counsel that is calling the witness providing an indication to the Court of the bicultural literacy of that witness before he or she is called to give evidence.37 Of course, individual witnesses may also have suggestions as to measures that may be taken to enable effective communication with the Court and counsel.

The Commissioner also acknowledges that its suggestions are largely informed by the literature available, much of which is general in its scope. Members of the particular Aboriginal community from the witness comes may be able to make other suggestions that are appropriate in the context of the culture and language of people from that community.

Suggested measures for improving communication

Communication facilitator or witness assistant

It may be appropriate to permit an Aboriginal witness to give his or her evidence through an interpreter.38

However, the Queensland Handbook outlines the problems in providing accredited interpreters in Aboriginal English, particularly due to the strong presence of cultural factors beyond mere translation of words.39 As an alternative to the use of accredited interpreters, the Queensland Handbook recommends the use of ‘communication facilitators’:

These facilitators are people with fluency in a particular form of Aboriginal English and with a good knowledge of Aboriginal culture, as well as with an understanding of court procedure and terminology. ...

The facilitator’s role is not that of an interpreter, as the facilitator does not attempt to discern what a witness means or otherwise give evidence to the court. Rather, the facilitator advises counsel of communication clues that the witness/defendant may have misinterpreted and suggests ways in which he/she may be able to comprehend the questions/discussions in court.40

Similarly, the CJC recommended that an Aboriginal witness might be assisted by the use of a ‘witness assistant’, who would have the right to speak to clarify uncertainty when a witness is giving evidence or request appropriate rephrasing of questions.41 An appropriate person may be available from within the witness’ local Aboriginal community.

The Commissioner suggests that the use of a communication facilitator or witness assistant is preferable to clarification of matters from the bar table where a witness faces communication difficulties.

It will be a matter for the Court to determine in each case whether a witness assistant is necessary. Counsel calling a witness who may require a witness assistant should notify the Court and the parties of this fact and indicate the community from which a witness assistant should be sought or suggest an appropriate person to act as witness assistant.

Evidence in narrative form

The giving of evidence-in-chief in ‘narrative form’, with minimal interruptions, often assists an Aboriginal witness to tell his or her story in an accurate and meaningful way.42 ‘Narrative form’ allows a witness to give their evidence outside the ‘question-and-answer’ format, or ‘without being tied to answering particular questions’.43

The Commissioner notes that directions have been made in this proceeding that evidence-in-chief be given by written affidavit, except with leave of the Court.44 The Commissioner submits that in the event that further evidence is required to be led by way of oral evidence, the witness be given an opportunity to provide a verbal narrative of his or her evidence, with minimal interruptions.45

Limitations on leading questions

Asking leading questions of Aboriginal witnesses may result in ‘gratuitous concurrence’. The CJC has observed that fairer and more effective modes of questioning are available, and counsel should be required to adopt those modes of questioning before resort is had to leading questions. The Court should disallow leading questions ‘if it is satisfied that the facts would be better ascertained if leading questions were not used’.46

Such an approach is consistent with the recognised power (and duty) of a Court to control proceedings.47 In Mooney v James, Barry J stated:

In the exercise of his power to control and regulate the proceedings the Judge may properly require counsel to abandon a worthless method of examination… it is the duty of the Judge to regulate and control the proceedings so that the issues for adjudication may be investigated fully and fairly.48

The CJC noted that leading questions asked of Aboriginal witnesses were disallowed in a criminal trial in the Northern Territory Supreme Court except where such questioning was:

Necessary to put counsel’s instructions; and

Every other effort to get the particular witness to concede those matters has failed.49

The Commissioner submits that the same approach will be appropriate with Aboriginal witnesses who may be susceptible to gratuitous concurrence in the present case. Where leading questions are considered necessary, the Commissioner submits that counsel and/or the Court should be mindful of the problem of gratuitous concurrence and seek clarification from a witness, as appropriate, with the use of non-leading questions.

Other directions for the questioning of witnesses.

To ensure the fair and effective questioning of Aboriginal witnesses, the Court may also wish to make a number of other directions (or disallow particular questions), as appropriate, that recognise features of Aboriginal communication which may create difficulties in a legal/court setting. These include:

That long questions be avoided and questions not be asked involving more than one proposition.51 In addition, either/or questions, negative questions and hypothetical questions should also be avoided, as well as questions involving ‘double-negatives’, figurative speech or abstract concepts or references.52

That witnesses not be required to state times and dates in ‘mathematical’ terms, but be allowed to give relative times and dates (eg ‘before the store opened’, ‘the day before’) unless the ‘mathematical’ time of an event is significant.53 Witnesses should generally be questioned in such relative terms unless they demonstrate a familiarity with mathematical time or precise times are important (eg ‘You started work before your first child was born?’). Where precise times are important it may still be appropriate to first establish a relative time.

That naming of deceased persons, particularly if recently deceased, be avoided. To this end, it might be preferable that counsel, before calling a witness, ascertain an appropriate method of referring to deceased persons that might be relevant to the testimony of the witness. For example, it might be preferable to refer to a deceased person using a substitute name,54 or by reference to their relationship with the witness or some other person (eg ‘John’s older sister’) or by using the initials of the deceased.55

Reading gestures on to the record

The Commissioner submits that non-verbal responses (such as nodding and other physical gestures) should be read onto the court record (for example, ‘the witness has nodded in agreement’), rather than requiring the witness to repeat their answer verbally.

………………………Jonathon HunyorSolicitor for the Aboriginal and Torres Strait Islander Social Justice CommissionerHuman Rights and Equal Opportunity Commission 20 March 2007

5. For a history of the development of Aboriginal English from its ‘pidgin English’ origins at the time of early colonisation, see Eades, above n 2, pp 18 – 20. She concludes: ‘Today the majority of Aboriginal Australians speak varieties of Aboriginal English as their first language. Aboriginal English is a distinctive dialect of English which reflects, maintains and continually creates Aboriginal culture and identity.’ (p 20). See also Chapter 6 generally (pp 57-78) for a detailed discussion of differences in pronunciation, grammar and vocabulary between Standard and Aboriginal English.

13. See The Queensland Handbook p 29. For example, in De Rose v State of South Australia [2002] FCA 1342, O’Loughlin J observed: ‘All too frequently during the course of the trial, counsel would ask a question that included an option such as: "Did you go out or did you stay at home?" All too often the reply was ‘Uwa’ (‘Yes’). There would then follow a period of confusion whilst counsel and the witness sorted out whether the answer ‘yes’ meant that the witness went out or whether it meant that the witness stayed at home. Although it might seem laborious, it is quite often much quicker to ask ‘Did you go out?’ If the answer is ‘Yes’, there may be no need to go further. If the answer is ‘No’ then counsel can follow up with the next question ‘Did you stay at home?’ Witnesses cannot be blamed for evidence that is ambiguous or uncertain if they are required to answer questions that they find difficult to understand or analyse.’ [254]

15. The Queensland Handbook notes that in some varieties of Aboriginal English, a negative question is answered the opposite to how it would be answered in Standard English. For example, the question ‘Didn’t you see him?’ this answer might be answered ‘yes’ (meaning, ‘yes I did see him’) in Standard English, but might be met with the answer ‘no’ in Aboriginal English (meaning ‘No I did not not see him’) (p 16).

27. For example, Eggleston comments ‘The witness does not understand why he is asked to tell the same story over and over again and, not wishing to offend the authorities he changes his story, believing that this is required of him. This makes the cross-examiner’s task of trapping the witness in inconsistencies very easy.’ E Eggleston, Fear, Favour or Affection, Australian National University Press, Canberra, 1976, p 167. See also G Neate, ‘“Speaking for country” and speaking about country: Some issues in the resolution of indigenous land claims in Australia’ Paper delivered to the Joint Study Institute, Sydney, on 21 February 2004, pp 37-41.

47. Section 41(1)(b) of the Evidence Act 1995 (Cth) permits a Court to disallow a question put to a witness in cross‑examination, or inform the witness that it need not be answered, if the question unduly annoying, harassing, intimidating, offensive, oppressive or repetitive. Section 41(2) further states: ‘Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account, inter alia: (a) any relevant condition or characteristic of the witness, including age, personality and education. The Commissioner submits that Aboriginality is an additional relevant characteristic of a witness for the purposes of s 41.

54.For example, in De Rose v State of South Australia [2002] FCA 1342 [15]O’Loughlin J used a substitute name for a witness, explaining his reasons as follows: ‘The oldest was Owen Kunmanara, who was born around 1910. The word “Kunmanara” was not part of his name; it is more like a title or a description. Owen's other name happened to be the same as that of a man who had died recently. In accordance with Aboriginal tradition, the name of the deceased man could not be spoken. Instead, the living person is referred to as “Kunmanara” - which literally means “substitute name” - thereby identifying him or her as a person whose name could not be spoken because of the death of another who had the same name.’

55. For examples of Courts adopting such a practice, see Neowarra v Western Australia [2003] FCA 1402, [256]-[257] as well as [164], [167]-[169], [181], [247]-[249], [254]; Land Tribunal, Aboriginal Land Claims to Mungkan Kandju National Park and Unallocated State Land Near Lochinvar Pastoral Holdings, 2001, p 28 [10]. See also Neate, above n 26, pp 60-2.